Lana v. Assimakopoulos-Panuthos

Summary

The Florida Second District Court of Appeal reviewed sanctions and expert-witness-fee awards arising from a contentious probate and trust proceeding. It held that section 57.105(1), Florida Statutes, authorizes attorney's fees but not expert witness fees taxed as costs, and that the separate fee awards to the personal representative's attorney and the estate curator violated due process and lacked a valid legal basis. The court affirmed in part, reversed in part, and certified conflict with decisions appearing to permit costs under section 57.105(1).

Holdings

1. Section 57.105(1) authorizes an award of reasonable attorney's fees, but not costs. Because expert witness fees are taxed as costs, they may not be included in a sanctions award under section 57.105(1).
2. The awards to Baskin and Fernald violated due process because their fee claims were not properly noticed for hearing, and Fernald's claim was made only as an unserved ore tenus motion during the hearing.
3. Rule 1.390 did not authorize the awards because neither Baskin nor Fernald was deposed.
4. Section 92.231(2) did not authorize the awards because neither Baskin nor Fernald testified in the proceeding.

Questions Presented

1. Whether section 57.105(1), Florida Statutes, authorizes an award of expert witness fees as part of sanctions.
2. Whether awarding expert witness fees to Baskin and Fernald without notice that those claims would be heard violated due process.
3. Whether Florida Rule of Civil Procedure 1.390 or section 92.231(2), Florida Statutes, authorized expert witness fees for Baskin and Fernald under the circumstances.

Disposition

reversed